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The Search for an Egalitarian First Amendment

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The Search for an Egalitarian First Amendment Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2018 The Search for an Egalitarian First Amendment Jeremy K. Kessler Columbia Law School, [email protected] David E. Pozen Columbia Law School, [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Constitutional Law Commons, First Amendment Commons, and the Law and Politics Commons Recommended Citation Jeremy K. Kessler & David E. Pozen, The Search for an Egalitarian First Amendment, 118 COLUM. L. REV. 1953 (2018). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2646 This Introduction is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. COLUMBIA LAW REVIEW VOL.118 NOVEMBER 2018 N0.7 INTRODUCTION THE SEARCH FOR AN EGALITARIAN FIRST AMENDMENT Jeremy K. Kessler* & David E. Pozen** Over the past decade, the Roberts Court has handed down a series of rulings that demonstrate the degree to which the First Amendment can be used to thwart economic and social welfare regulation­ generating widespread accusations that the Court has created a "new Lochner." This introduction to the Columbia Law Review'.s Symposium on Free Expression in an Age of Inequality takes up three questions raised by these developments: Why has First Amendment law become such a prominent site for struggles over socioeconomic inequal­ ity? Does the First Amendment tradition contain egalitarian elements that could be recovered? And what might a more egalitarian First Amendment look like today? After describing the phenomenon of First Amendment Lochnerism, we trace its origins to the collapse of the early twentieth-century "pro­ gressive" model of civil libertarianism, which offered a relatively statist, collectivist, and labor-oriented vision of civil liberties law. The recent eruption of First Amendment Lochnerism is also bound up with transformations in the economic and regulatory environment associated with the advent of "informational capitalism" and the "information state." First Amendment Lochnerism may reflect contemporary judicial politics, but it has deep roots. To figure out how to respond to the egalitarian anxieties besetting the First Amendment, it is natural to consult normative theories offree speech. Yet on account of their depoliticization and abstraction, the canonical theories prove indeterminate when confronted by these anxie­ ties. Instead, it is a series of midlevel conceptual and jurisprudential moves that most often do the work of resisting First Amendment Lochnerism. This grammar of free speech egalitarianism, we suggest, * Associate Professor of Law and Milton Handler Fellow, Columbia Law School. ** Professor of Law, Columbia Law School. For instructive comments on an earlier draft, we thank Enrique Armijo, Vince Blasi, Jessica Bulman-Pozen, Jameel Jaffer, Lina Khan, Ramya Krishnan, Henry Monaghan, Jed Purdy, Fred Schauer, Ganesh Sitaraman, Nelson Tebbe, Laura Weinrib, and Tim Wu. For their assistance with this Essay and their stewardship of the Symposium, we are especially grateful to Joseph Catalanotto, Eve Levin, Sam Matthews, Kelsey Ruescher, Jeff Stein, and Tomi Williams. 1953 1954 COLUMBIA LAW REVIEW [Vol. 118:1953 enables the creative elaboration of a few basic motifs concerning the scope and severity ofjudicial enforcement, the identification and recon­ ciliation of competing speech interests, and the quality and accessibility of the overall expressive system. If First Amendment Lochnerism is to be countered in any concerted fashion, the roadmap for reform will be found within this grammar; where it gives out, a new language may become necessary. INTRODUCTION: THE EGALITARIAN ANxIETY ........................................... 1954 I. THE LONG ROAD TO THE ROBERTS COURT........................................ 1961 A. First Amendment Lochnerism .................................................. 1962 B. The Rise and Fall of Progressive Civil Libertarianism .............. 1964 II. INFORMATIONAL CAPITALISM, THE INFORMATION STATE, AND THE FIRST AMENDMENT-INDUSTRIAL COMPLEX ....................................... 1970 III. THE INADEQUACY OF FIRST AMENDMENT THEORY ............................. 1978 A. Truth, Autonomy, Democracy ... and Equality? ...................... 1979 B. The Example of Campaign Finance Regulation ...................... 1981 IV. FIRST AMENDMENT EGALITARIANISM: A CRITICAL ROADMAP ............ 1984 A. Minimalism Versus Maximalism ................................................ 1986 B. Speech on Both Sides ................................................................ 1994 C. From Speaker to System ............................................................ 2000 CONCLUSION: THE EGALITARIAN FIRST AMENDMENT IN EXILE? .............. 2007 INTRODUCTION: THE EGALITARIAN ANxlETY The specter of inequality haunts the American legal imagination. For an ideologically diverse range of scholars, policymakers, and activists, growing inequality names both the deep cause and the dangerous effect of a set of overlapping conflicts--economic, racial, cultural, constitutional-that threaten the stability of contemporary U.S. society. Of course, the problem of inequality is nothing new. The nation's constitutive ideals of economic independence and democratic self-rule have long achieved realization through practices of mastery: in particular, through the power wielded by white male property owners over the nonwhite, the nonmale, and the poor.1 Given the role that material disparities have played in American political development, it is no surprise that the legal meaning of equality has proved especially contentious, or that this meaning has changed dramatically over time. Likewise, the relative priority of equality within the inventory of American constitutional values has tended to ebb and 1. See generally Laura Edwards, The People and Their Peace: Legal Culture and the Transformation oflnequality in the Post-Revolutionary South (2009); Aziz Rana, The Two Faces of American Freedom (2010). 2018] AN EGALITARIAN FIRST AMENDMENT 1955 flow. In the 1860s and 1960s, for instance, the dominance of equality talk heralded the collapse of preexisting racial and (in the 1960s) sexual settlements, as well as the transformation of federalism, the separation of powers, and a host of individual constitutional rights. Today, equality talk is once again at the center of the legal conversation, challenging founda­ tional assumptions about how numerous fields of law are organized and studied and about the social functions they are meant to serve. Why? One proximate cause is the financial crisis of 2008 and the economic disruption that followed in its wake. Congress's and the executive branch's "seemingly plutocratic response to the crisis" inspired "angry attacks by protesters on both left and right,"2 from Occupy Wall Street to the Tea Party. The Supreme Court's 2010 decision in Citizens United v. FEC, 3 striking down statutory limits on corporate electioneering, com­ pounded these concerns. By 2014, Americans had become alarmed enough to make a bestseller of economist Thomas Piketty's 700-page empirical study of capitalism and inequality, Capital in the Twenty-First Century. 4 Two years later, the antiplutocratic politics of the early 2010s found a still broader outlet in the 2016 presidential election. For a decade now, the "anxiety that the 'Great Recession' ... defines a new economic normal,"5 in which the wealthiest individuals take an ever larger piece of an ever shrinking pie, has shaped American public culture. The conditions and aftermath of President Donald Trump's ascendancy make clear that the resurgence of antiplutocratic politics was about far more than elite mismanagement of the macroeconomy.6 On the campaign trail, Trump framed his critique of postcrisis financial regulation as part of a larger and darker narrative of Wall Street capture 2. David Singh Grewal, The Laws of Capitalism, 128 Harv. L. Rev. 626, 626 (2014) [hereinafter Grewal, Laws of Capitalism]. 3. 558 U.S. 310 (2010). We discuss Citizens United infra section III.B. 4. Thomas Piketty, Capital in the Twenty-First Century (Arthur Goldhammer trans., 2014); see also David Singh Grewal & Jedediah Purdy, Inequality Rediscovered, 18 Theoretical Inquiries L. 61, 61 (2017) [hereinafter Grewal & Purdy, Inequality Rediscovered] ("Thomas Piketty's Capital in the Twenty-First Century . .. at once produced and symbolized a new public awareness of economic inequality."). 5. Grewal, Laws of Capitalism, supra note 2, at 626. 6. For a well-sourced, if contested, history of the financial crisis's management by U.S. officials, see generally Ron Suskind, Confidence Men: Wall Street, Washington, and the Education of a President (2011). For a more comprehensive analysis of the relation­ ship between U.S. politics and international political economy during the crisis years, see generally Adam Tooze, Crashed: How a Decade of Financial Crises Changed the World (2018). 1956 COLUMBIA LAW REVIEW [Vol. 118:1953 and American decline.7 "Pikettymania"8 revolved around the stark neo­ Marxist claim that "capitalism automatically generates arbitrary and unsustainable inequalities that radically undermine the meritocratic values on which democratic societies are based."9 And from Black Lives Matter to No More Deaths
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